The States, through the taxing power, "cannot reach and restrain the action of the national government ...—cannot reach the administration of justice in the Courts of the Union, or the collection of the taxes of the United States, or restrain the operation of any law which Congress may constitutionally pass—... cannot interfere with any regulation of commerce." Otherwise a State might tax "goods in their transit through the State from one port to another for the purpose of re-exportation"; or tax articles "passing through it from one State to another, for the purpose of traffic"; or tax "the transportation of articles passing from the State itself to another State for commercial purposes." Of what avail the power given Congress by the Constitution if the States may thus "derange the measures of Congress to regulate commerce"?
Marshall is here addressing South Carolina and other States which, at that time, were threatening retaliation against the manufacturers of articles protected by the tariff.[1266] He pointedly observes that the decision in M'Culloch vs. Maryland is "entirely applicable" to the present controversy, and adds that "we suppose the principle laid down in this case to apply equally to importations from a sister State."[1267]
The principles announced by Marshall in Brown vs. Maryland have been upheld by nearly all courts that have since dealt with the subject of commerce. But there has been much "distinguishing" of various cases from that decision; and, in this process, the application of his great opinion has often been modified, sometimes evaded. In some cases in which Marshall's statesmanship has thus been weakened and narrowed, local public sentiment as to questions that have come to be considered moral, has been influential. It is fortunate for the Republic that considerations of this kind did not, in such fashion, impair the liberty of commerce among the States before the American Nation was firmly established. When estimating our indebtedness to John Marshall, we must have in mind the state of the country at the time his Constitutional expositions were pronounced and the inevitable and ruinous effect that feebler and more restricted assertions of Nationalism would then have had.
Seldom has a triumph of sound principles and of sound reasoning in the assertion of those principles been more frankly acknowledged than in the tribute which Roger Brooke Taney inferentially paid to John Marshall, whom he succeeded as Chief Justice. Twenty years after the decision of Brown vs. Maryland, Taney declared: "I at that time persuaded myself that I was right.... But further and more mature reflection has convinced me that the rule laid down by the Supreme Court is a just and safe one, and perhaps the best that could have been adopted for preserving the right of the United States on the one hand, and of the States on the other, and preventing collision between them."[1268]
Chief Justice Taney's experience has been that of many thoughtful men who, for a season and when agitated by intense concern for a particular cause or policy, have felt Marshall to have been wrong in this, that, or the other of his opinions. Frequently, such men have, in the end, come to the steadfast conclusion that they were wrong and that Marshall was right.
FOOTNOTES:
[1107] Institut national des sciences et des arts.
[1108] Dickinson: Robert Fulton, Engineer and Artist, 156-57; also see Thurston: Robert Fulton, 113.
[1109] See Dickinson, 126-32; also Knox: Life of Robert Fulton, 72-86; and Fletcher: Steam-Ships, 19-24.
[1110] Dickinson, 134-35; Knox, 90-93.